Citation Nr: 1501801
Decision Date: 01/14/15 Archive Date: 01/20/15
DOCKET NO. 12-33 826A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina
THE ISSUE
Entitlement to service connection for a urinary tract problem, to include benign prostatic hyperplasia (BPH).
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
B. R. Mullins, Counsel
INTRODUCTION
The Veteran had active service from March 1969 to April 1971.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.
The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in August 2014. A written transcript of this hearing was prepared and associated with the Veteran's electronic paperless file (Virtual VA).
FINDINGS OF FACT
1. The Veteran does not suffer from a urinary tract problem that manifested during, or as a result of, active military service.
2. The evidence of record does not reflect that the Veteran was exposed to herbicidal agents such as Agent Orange during his military service.
CONCLUSION OF LAW
The criteria for establishing entitlement to service connection for a urinary tract problem, to include BPH, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Duty to Notify
VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014).
Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).
In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486.
A letter sent to the Veteran in March 2010 addressed all notice elements listed under 3.159(b)(1) and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. He was also informed as to how VA determines the appropriate disability rating and effective date. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b).
Duty to Assist
Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service treatment records. Also, the Veteran received a VA medical examination in May 2010, and VA has obtained these records as well as the records of the Veteran's outpatient treatment with VA. Copies of private treatment records have also been associated with the claims file. Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not yet been obtained.
As previously noted, the Veteran was provided an opportunity to set forth his contentions during a hearing before the undersigned Veterans Law Judge in August 2014. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that a Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.
Here, the undersigned noted the issues on appeal and solicited information regarding the occurrence of injuries and onset and nature of his symptomatology. The Veteran was advised of the reasons for the previous denials and of the type of evidence that could be identified or submitted to further substantiate the claim. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the hearing discussion did not reveal any evidence that might be available that had not been submitted. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's claims. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record.
Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Relevant Laws and Regulations
Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).
In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).
To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)).
Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").
Analysis
The Veteran contends that he is entitled to service connection for a chronic urinary tract problem. Specifically, the Veteran has asserted that he suffers from a current problem due to either an incident in which he was thrown from a horse, or, exposure to Agent Orange. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran does not suffer from a chronic urinary problem that manifested during, or as a result of, active military service, to include as due to an incident involving a horse or exposure to Agent Orange. As such, service connection cannot be established.
The Veteran's service treatment records fail to reflect that he suffered from any chronic urinary tract problem prior to his separation from active duty. According to a November 1969 record, the Veteran was suffering from phimosis. However, no chronic urinary tract problem was diagnosed at this time. Service treatment records also reflect that he was involved in an accident on May 21, 1970, in which he was thrown against a tree by a horse and then hospitalized. Records reflect that he was suffering from upper transverse abdominal pain. The Veteran was determined to have been AWOL at the time of the accident. The Board recognizes that the Veteran denied being AWOL at this time in his April 2011 notice of disagreement. However, official records clearly note that he was in fact AWOL at the time of this accident. The Veteran was also treated for urethritis in August 1970 and a February 1971 record notes that the Veteran's history was suggestive of chronic urinary tract infections. However, his February 1971 separation examination notes that the Veteran's urinary tract infection was in fact an acute condition. As such, there is no evidence of a chronic urinary tract problem manifesting during, or as a result of, active military service.
Likewise, post-service treatment records fail to reflect that the Veteran suffers from a current chronic urinary tract problem that manifested during, or as a result of, active military service. According to a statement dated December 2008 from a VA physician with the initials K. W. L., the Veteran was originally seen in October 2005 with lower urinary tract symptoms consistent with bladder outlet obstruction secondary to BPH. Prostate surgery was performed in June 2006, but the Veteran continued to have severe lower urinary tract symptoms such as urgency, incontinence, nocturia and occasional pain on urination. Bladder pressure studies demonstrated a small capacity bladder with much higher than normal bladder pressures. The Veteran's condition had not responded to medication and it was suspected that he would continue to have ongoing problems with urine storage and voiding in the future.
The Veteran was afforded a VA genitourinary examination in May 2010. The Veteran described his in-service accident involving a horse. The Veteran denied any problems with urination prior to this incident. Upon examination, it was determined that the Veteran suffered from a neurogenic bladder. The Veteran's symptoms of urgency and nocturia were consistent with an overactive bladder. The examiner concluded, based on the Veteran's reported history and having not reviewed his claims file, that it was more likely than not that his neurogenic bladder was a result of the injury he sustained while riding a horse.
An addendum to the above examination was provided in May 2010 after the examiner was provided the Veteran's claims file for review. The examiner concluded that the documentation found in the claims file negated the Veteran's documentation submitted with his claim and his stated history. There was a great deal of inconsistency between the history offered by the Veteran and the evidence available in the claims file. The Veteran distinctly denied a history of any and all urological problems prior to falling off the horse. However, evidence of record demonstrated that the Veteran was seen by urology in September 1969 due to phimosis and consideration of a circumcision. The Veteran's February 1971 examination report also noted that as a young adult, the Veteran had bed wetting, urinary urgency, positive frequency and nocturia. The examiner was unable to draw any conclusions in favor of the Veteran's claim. It was his opinion that the Veteran had urological problems prior to service. Urodynamic studies demonstrate a small capacity bladder with much higher than normal pressures. The small capacity bladder was more likely than not a congenital condition. As such, it was not likely that the Veteran's claimed condition of lower urinary tract symptoms with neurogenic bladder were made worse by military service.
The preponderance of the above evidence demonstrates that service connection for urinary tract problems is not warranted. While there is evidence of urinary symptomatology during active military service, there is no evidence of a chronic disability manifesting during, or as a result of, active military service. According to the 1971 separation examination report, the Veteran was experiencing an "acute" urinary tract infection. Post-service treatment records also fail to reflect any current chronic disability that manifested during, or as a result of, active military service. The Board is not disputing that there is evidence of a chronic disability. According to a July 2007 VA treatment note, a cystoscope revealed a small capacity bladder with high pressure voiding. An October 2008 VA treatment note also identifies a neurogenic bladder with small capacity. A December 2010 private treatment note also assigned diagnoses of urinary frequency and urge incontinence. However, while there is evidence of a current disability, the evidence of record fails to link this condition to military service. The May 2010 VA examiner concluded, after reviewing the evidence of record, that the Veteran's small capacity bladder was a congenital condition. A congenital or developmental defect is generally not a condition for which service connection may be granted. See 38 C.F.R. § 3.303(c). While service connection may be granted, in limited circumstances, for superimposed disability on a congenital disorder (see VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990); see also Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993)), there is no evidence of record to suggest that this occurred in this case. As noted by the May 2010 VA examiner, it was not likely that the Veteran's claimed condition of lower urinary tract symptoms was made worse by military service. As such, the preponderance of the evidence of record demonstrates that service connection is not warranted for a urinary tract problem.
The Board notes that an October 2011 statement from a physician with the initials J. R. J. suggests that the Veteran had a long history of urinary frequency and incontinence of the bladder that was "possibly" caused by Agent Orange exposure in 1970 to 1971. While the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). As an initial matter, the Board notes that an opinion using words such as "possibly" are of little probative value. See e.g., McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (finding a doctor's opinion that "it is possible" and "it is within the realm of medical possibility" to be too speculative to establish a medical nexus).
Furthermore, there is no evidence of the Veteran having in fact been exposed to Agent Orange during his military service. The Veteran did not serve in Vietnam and he served in Korea between April 1970 and April 1971. A veteran who, during active military, naval or air service, served in Vietnam during the Vietnam era between January 9, 1962, and May 7, 1975, is presumed to have been exposed to herbicides. See 38 U.S.C.A. § 1116(f). Also, the Department of Defense (DOD) has confirmed that the herbicide, Agent Orange, was used from April 1968 through July 1969 along the Korean demilitarized zone (DMZ) to defoliate the fields of fire between the front line defensive positions and the south barrier fence. The treated area was a strip of land 151 miles long and up to 350 yards wide from the fence to north of the civilian control line. There is no indication that the herbicide was sprayed in the DMZ itself. Both the 2nd and 7th Infantry Divisions, United States Army, had units in the affected area at the time Agent Orange was being used. Field artillery, signal and other engineer troops also were supplied as support personnel during the time of the confirmed use of Agent Orange. The estimated number of exposed personnel is 12,056. If it is determined that a veteran who served in Korea during this time period belonged to one of the units identified by DOD, then it is presumed that he or she was exposed to herbicides containing Agent Orange, and the presumptions outlined in 38 C.F.R. § 3.309(e) will apply. See MR21-1MR, Part IV, Subpart ii, Chapter 2, Section C; see also Veterans Benefits Administration (VBA) "Fact Sheet" distributed in September 2003 (http://vbaw.vba.va.gov/bl/21/publicat/Letters/Other/AoKorea.doc). The evidence of record clearly establishes that the Veteran did not serve in Korea until 1970. As there is no other evidence of record to suggest exposure to herbicidal agents, the Board will not consider this matter further.
Finally, the Board recognizes that the Veteran believes he suffers from a chronic urinary tract condition as a result of his military service. In April 2010, the Veteran indicated that his condition had been ongoing since military service and continued to worsen. While the Veteran is competent to testify to his symptomatology, the record does not reflect that he has the requisite training or expertise to offer a medical opinion diagnosing himself with a chronic disability and linking it to military service. According to the competent physician of record, the Veteran's symptomatology stems from his congenital bladder condition rather than military service. Also, according to a March 2010 statement from an unknown individual, the Veteran would urinate himself and could only drink small amounts of water. While the Board is sympathetic to the Veteran's situation, the preponderance of the competent evidence of record fails to link this symptomatology to military service.
Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for a urinary tract problem, to include BPH, must be denied.
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ORDER
The claim of entitlement to service connection for a urinary tract problem, to include BPH, is denied.
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WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs